Kelly on Malpractice

In Olinger v. University Medical Center, 2008 WL 162535 (Tenn.Ct.App.), plaintiffs filed a birth trauma action after their son was born with brachial plexus palsy. The plaintiffs claimed the injury occurred because the defendants failed to take the proper medical steps to resolve a delivery complication known as shoulder dystocia. Following a trial, the jury returned a verdict in favor of all of the defendants. Plaintiffs appealed claiming the trial court erred: (1) when it gave a jury instruction on the sudden emergency doctrine. When Ms. Olinger became pregnant with her second child in 1999, Dr. Lanning served as her treating gynecologist and obstetrician. A complication known as shoulder dystocia occurred during the delivery. Shoulder dystocia occurs after the head of the infant is delivered and one of the infant’s shoulders then becomes lodged under the mother’s pubic bone. The child suffered significant and permanent damage to his right arm as a result of the shoulder dystocia. He was diagnosed with brachial plexus palsy and has since undergone several surgical procedures.
One of plaintiffs’ allegations was that Nurse Sturgill improperly applied fundal pressure during the delivery. Fundal pressure is pressure on the mother’s abdomen. Plaintiffs claimed the fundal pressure should not have been applied and caused or contributed to the child’s injuries. The defendants argued that the “sudden emergency” confronted by Dr. Lanning and the delivery room nurses was not the occurrence of shoulder dystocia, but the fact that the shoulder dystocia was not resolved after the typical steps used to resolve that complication failed. Dr. Lanning added that in his 21 years of practicing medicine as an obstetrician, Ms. Olinger’s delivery was the first time he encountered shoulder dystocia that was not resolved by the McRoberts maneuver and suprapubic pressure. The jury was presented with conflicting testimony as to whether Nurse Sturgill did or did not apply fundal pressure. In short, plaintiffs’ proof was that she did and defendants’ proof was that she did not. The issue about the sudden emergency charge was fairly simple. The defendants argued that the sudden emergency occurred when the McRoberts maneuver and suprapubic pressure failed to resolve the shoulder dystocia. The plaintiffs argued that Dr. Lanning should have anticipated that those initial steps would not work, therefore, no sudden emergency arose.
The Court of Appeals revisited the sudden emergency doctrine in Ross v. Vanderbilt Univ. Med. Ctr., 27 S.W.3d 523 (Tenn.Ct.App. 2000). In Ross, the plaintiff went to the emergency room because of a cut on her finger. The emergency room physician injected the plaintiff’s finger with Lidocaine in order to numb it. Then, almost immediately thereafter, the plaintiff had an allergic reaction to the shot. She fainted and fell to the floor on her head, suffering brain damage. The emergency that justified the sudden emergency instruction was not the plaintiff’s cut finger, but her allergic reaction to the shot. There was testimony that plaintiff’s allergic reaction was both sudden and unexpected. Therefore, the court in Ross held that under the appropriate facts, the sudden emergency doctrine may and should be applied in the assessment of the fault of an emergency room doctor. Returning to the facts of this case, the Court of Appeals agreed with Plaintiffs’ argument that because of a physician’s training and background, the sudden emergency doctrine has a limited application in medical malpractice cases. “Simply because there is a medical complication does not necessarily mean that there is a sudden emergency.” However, under the material evidence standard following a jury verdict, the Court concluded that there was sufficient proof presented at trial that when the shoulder dystocia did not resolve after application of the McRoberts maneuver and suprapubic pressure – a sudden emergency charge was appropriate. Be prepared for more use of the sudden emergency charge in the wake of this ruling.